Bell v. State

• Decision Date: 27 January 1937
• Docket Number: No. 18737.,18737.
• Citation: 101 S.W.2d 558
• Parties: BELL v. STATE.
• Court: Texas Court of Criminal Appeals

101 S.W.2d 558

BELL v. STATE.

No. 18737.

Court of Criminal Appeals of Texas.

January 27, 1937.

Commissioners' Decision.

Appeal from Motley County Court; W. R. Cammack, Judge.

George Bell was convicted of unlawfully possessing distilled spirits which was not contained in a container to which was affixed a stamp or other valid evidence showing payment of tax and of unlawfully possessing liquor for purpose of sale in local option territory and he appeals.

Judgment reversed, and cause remanded.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of two misdemeanor offenses, and his punishment was assessed at a fine in the sum of $100 for each offense.

The information upon which appellant was tried, omitting the formal parts, reads as follows: "that on or about the 20th day of December, A. D. 1935, and before the making and filing of this information in the County of Motley, and State of Texas, George Bell did then and there unlawfully have in his possession distilled liquors, to-wit: whiskey, which was not then and there contained in a container, to which was affixed a stamp or other valid evidence showing the payment of the tax on such liquor due to the State of Texas."

The second count charged as follows: "that on or about the 20th day of December, A. D. 1935, and before the making and filing of this information, in the county of Motley and State of Texas the said George Bell did then and there unlawfully have in his possession, and did then and there possess for the purpose of sale in said county, which county was then and there a county in which the sale of any intoxicating liquor had been prohibited by a valid and subsisting local option election, intoxicating liquor containing alcohol in excess of one-half of one per centum by volume," etc.

The uncontradicted testimony on the part of the State shows that on the 20th day of December officers obtained a search warrant to search appellant's home. After having obtained the search warrant, they went to his home, searched it, and found eight pints of whisky and a small quantity of wine. The containers did not bear any stamp showing that the tax due thereon had been paid. Appellant proved by Roy Hall that he (Hall) was a salesman for the Pettijohn Liquor Company; that about the 20th of December, 1935, he sold to appellant ten pints of liquor upon which the tax had been paid, but no stamps had been placed thereon showing the payment of such tax; that at the time they were unable to obtain the necessary stamps and were advised by the authorities to make an inventory of all unstamped liquor on hand; that the stamps would be furnished either in November or December, but that in fact they were not furnished until the 7th of January, 1936. The court submitted both counts to the jury, and the jury found the appellant guilty on both counts and assessed his punishment at a fine of $100 for each offense. It is obvious that the second count charging appellant with possession of liquor for the purpose of sale in local option...